P L D 1953 Sind 27 (PLP)

INAMULLAH, J.‑This is an application under Order 12, rule 6 of the C. P. C. arising out of a suit for the recovery of certain amount of money and for accounting. The facts of the case leading to the present application are as under: The parties were partners in a running concern which did the business of aerated water. The partnership commenced from 1st November 1949, and was to run for a period of 10 years. The partners who are now the plaintiffs and the defendants equally contributed a sum which came to Rs. 2,50,

000. In June 1951, when differences arose between the parties as a result of which on 25th August 1951, an agreement was executed between the parties. According to this agreement the partnership stood dissolved from 31st August 1951. It was further agreed in the said agreement that the plaintiffs would be entitled to an amount of Rs 2,35,000 subject to the rendition of profit and loss account up to 31st August 1951. The defendants took over the possession of the entire running concern from the 1st of September 1951. The defendants had the account prepared according to the loss and profit up to 31st August 1951. The result of the accounting was that according to the defendants a sum of Rs. 2,00,097/12/9 was due to the plaintiffs. The plaintiffs contested this amount and took objection that the accounting was not correct. The plaintiffs called upon the defendant to pay the amount admitted by them and refer the matter for settlement of accounts to the award of an independ ent auditor. The defendants, however, did not pay the amount and the plaintiffs were obliged to file a suit. In the defence it is admitted that there was a partnership and the same has been dissolved and that the defendants have taken over the possession of the concern from the 1st of September 1951. It is however contended by the defendants that the plaintiffs are entitled to only that amount which had been found on a prepara tion of the accounts. On 20th December 1951, an application under Order 12, rule 6, was filed which was followed by an application under Order 40, rule 1 for the appointment of a receiver on 16th April 1952. These two applications came up for hearing on 29th April 1952. The defendants deposited an amount of Rs. 2,00,0 87 by a cheque on 29th April 1952. The parties also agreed on the same day to refer the matter to arbitration. Under these circumstances the Court ordered that it was not necessary to decide the said two applications and they were disposed of accordingly. On 30th August 1952, the award was given by Mr. Dingomal and Mr. Lakhani advocates of this Court. The arbitrators ordered the defendants to pay to the plaintiffs an amount of Rs. 2,20,000 in full and final settlement of their claims. The plaintiffs, how ever, took a technical objection to this award as they were not satisfied with the amount that the arbitrators had ordered to be paid to the plaintiffs. The award was however set aside by this Court on 9th December 1952. After the award was set aside the plaintiff on 10th February 1953, filed the present application under Order 12, rule 6, C. P. C. The question for my determination is whether the defendants have made any admission of fact in which would entitle the plaintiffs to a judgment on that admission. The admission is contained in a letter of the 6th October 1951, addressed on behalf of Haji Sattar Haji Mohammed It reads as under :‑ "We have to refer to your letter dated the 25th August 1951, by which you agreed to withdraw from the partnership from 1st September 1951, and to take in full settlement Rs. 2,35,000 (Rupees two lac thirty five thousand) only on account of your capital and goodwill as also the amount due to you according to the profits and loss account and balance‑sheets less any amount that may have been drawn by you. The accounts now have been prepared and handed over to you. We have also handed over to you the draft copy of Dissolution Deed. According to the accounts, the amount due and payable to you in terms of our settlement would be as under :‑

1. Abdul Karim Rs. 67,354 3 0

2. Akbar A. Karim Rs. 53,093 6 9

3. Suleman Abdul Karim Rs. 53,093 7 0

4. Issa Abdul Karim Rs. 26,546 11 3 Total Rs. 2,00,087 12 0 The plaintiffs rely upon this admission made by the defendants about their liability. The defendants contend that the above admission is subject to certain conditions. They rely upon the concluding portion of the letter mentioned above. The concluding portion on which the defendants rely is as under: "As the partnership has been dissolved and it is desirable to close the accounts, we shall thank you if you will kindly call at our office, receive the above amounts, sign the receipts as well as the Dissolution Deed and return to us the files and other papers of the partnership which are still lying with you." In the present case the words "the amount due and payable to you in terms of our settlement would be as under", are to my mind a clear admission of the liability of 2,00,087‑12‑

9. If an admission of liability for certain amount is followed by a condition that the amount would be paid on condition that a receipt is executed by the party receiving the amount, this condition does not, in any way, make the admission less binding on the party who made it. In my opinion the condition of signing a receipt for the amount and executing a deed of dissolution of partnership and return of the files relating to partnership does not in any way minimise the effect of the admission of liability made by the plain tiffs for Rs. 2,00,087/12/9 the less effective. Under Order 12, rule & all that the Court has to see is whether any admission of fact had been made or not which would entitle a party to ask for judgment in his favour. In the present case, as I have already pointed above, the condition put by the defendants is not of such a nature that it minimises the effect of the admission made by the defendants. The defendants do not contend that they have not made such an admission as mentioned above but their contention is that it was a conditional omission and as such it cannot be given effect; under Order 12, rule

6. The real test to my mind is, if no appli cation under Order 12, rule 6 was made by the plaintiffs, could the plaintiff on the final date of hearing of the suit be entitled without giving further evidence to a judgment on the admission referred to above. I entertain no doubt that in the absence of any allegation challenging the admission the Court would be entitled to decree the suit on the basis of such admission. The learned counsel for the defendants relied on 55 L T 42 in support of his contention that the present admission was a conditional admission and as such it could not be the basis of judgment under Order 12, rule 6, C, P. C. In my opinion this case has no bearing to the present facts of the case. In that case it was held that unless there was a clear, admission that the money was due and recoverable no judgment on admission could be passed. In that case there was certainly no admission as all that the defendant had admitted was that the plaintiff had agreed to lend him 250 and that the suit was premature. It is clear in that case, that all that the defendant had admitted was, that the plaintiff had agreed to lend him some money but it did not follow from that admission that he actually received the money. Another case on which the learned counsel for the defendants relied is 23 C W N page 1017. This case has also no application. In that case their Lordships found that the written statement did not amount to an unambiguous and un‑conditional admission because along with certain admission of liability the defendants also stated that the plaintiff has no cause of action against the defendants. The next case relied upon by the learned counsel for the defend ants is 50 C W N page

439. This case has also no applica tion. In that case one of the defendants admitted that he alone was liable for the amount claimed. It was held in that case that either the plaintiff should accept this admission by one of the defendants as a whole or reject it. It was not open to the plaintiff in that case to ask for a judgment against the defendant who made the admission and also pursue his remedy against the outer defen dants. Another case relied upon by the learned counsel for the defendant is 27 C W N page

783. In that case the learned Judges came to the conclusion that the admission made by the defendant was not unequivocal. It is always a question of fact whether a certain admission is unambiguous and unconditional or not. In that case on the reading of the admission it appears that it was not unconditional admission. The defendants also relied on A I R 1927 Sind page

25. In that case also it was found that the admission was not clear and that there was no admission that any amount was payable to the plaintiff by the defendant in the suit. This case therefore has no application to the present case. In the present case the defendants admit their liability for the amount of Rs. 2,00,087‑12‑9 but no more. It cannot therefore be said that the defendants have not made a clear admission of their liability so far as this amount is concerned. It was also contended that, at any rate, if this admission is treated as unconditional admission the plaintiffs are not entitled to anything more than what has been admitted by the defendants. The plaintiffs, it is contended by the defendants, would not be entitled to any further decree. This contention has no force. The object of the rule is to enable a party to obtain judgment ail, least to the extent of the admission made by the defendant and to pursue the remedy further as regards the balance of the claim. There is a direct authority of this Court, reported in A I R 1926 Sind

190. In that case it was contend that the plaintiff could claim Judgment for the amount admitted only if he gave up the balance of his claim. But it was held in that case that the plaintiff could ask for judgment under Order 12, rule 6 for the amount admitted and further proceed with the case for the rest of the amount claimed by him. There is another case reported in A I R 1918 C 467 on the same point. It was held in that case that a Court has jurisdiction under Order 12, rule 6 to pass judgment for the plaintiff in respect of a portion of the claim admitted by the defendant with liberty to the plaintiff to ‑proceed with the suit in the ordinary way as to the remainder of the claim. In the present case, as I have already pointed out above, the admission is a clear unequivocal admission. The so called conditions of passing on a receipt and executing the dissolution of partnership deed and returning the files relating to the partnership are not conditions denying the admission of liability for the payment. I have therefore for the reasons given above no hesitation in holding that it is a fit case in which I should exercise my discretion under Order 12, rule 6 and pass judgment for Rs. 2,00,087/12/9 against the defendants on the admission made by them and reserve the liberty to the plaintiffs to proceed with the rest of their claim against the defendants and I order accordingly. The plaintiffs would be entitled to realise this amount before the determination of the suit. A. H. Order accordingly.